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Johnson v. Filler

Court of Appeals of Illinois, Second District

August 2, 2018

JAY K. FILLER, FILLER AND ASSOCIATES, DAVID O'BRIEN, JAMES SCHULZ JR., and CAROLYN SCHULZ and JULIE SPIERS, Individually and as Executors and Beneficiaries of a Purported Last Will and Testament of Lawrence A. Johnson, Deceased, Defendants Steven Johnson, Plaintiff-Appellant; Jay K. Filler and Filler and Associates, Defendants-Appellees.

          Appeal from the Circuit Court of McHenry County, No. 15-L-163 Honorable Michael A. Caldwell, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Jorgensen concurred in the judgment and opinion.



         ¶ 1 This case involves a family of five children whose parents owned substantial amounts of farmland in McHenry County. The mother preceded the father in death. After the father died, three children filed a probate action (against the other siblings, an accountant, and an attorney) contesting the father's will and trust and asserting other civil claims. The subject of this appeal is a claim for aiding and abetting tortious interference with inheritance expectancy, which was filed by one of the children, Steven Johnson, against the attorney, Jay K. Filler, who prepared the will and trust that was the subject of the probate action. Following a settlement between the siblings in the probate action, the trial court dismissed Steven's claim against Filler. Steven appeals from that order. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Lawrence and Ruth Johnson had five children: Larry, Marjorie, Steven, Carolyn, and Julie. Lawrence and Ruth each owned a one-half interest as tenants in common in 410 acres of farmland in McHenry County, known as Johnson Farms, which they had titled in a trust. A 116-acre parcel was known as the "Home Farm." Ruth died on July 28, 2001. Under the terms of Ruth's trust, she left her one-half interest in Johnson Farms to her children with a life estate for Lawrence. Ruth's trust further specified that, upon Lawrence's death, Steven would own Ruth's one-half interest in the Home Farm, and the remaining interest in Johnson Farms was to be distributed to all five children equally. Ruth's trust named Lawrence and Carolyn as cotrustees. Ruth's trust named Lawrence as executor and "Carolyn *** and *** Larry *** each in the order named, as [successor] executor."

         ¶ 4 The record indicates that Lawrence had a will dated October 17, 2011. In that will, there was a provision titled "Article 2, Gifts on My Death." Under section 2.1 of article 2, titled "Gifts of Tangible Personal Property," Lawrence bequeathed all his tangible personal property in equal shares to all his children. Under section 2.2, titled "Gift of Balance," Lawrence, after making other specific bequests, stated as follows:

"C. I give the balance of my estate equally among my children Julie ***, Carolyn ***, Marjorie ***, and Larry ***.
D. I have intentionally not provided for distribution under this Will for my son Steven ***, as I have made substantial gifts to him over the years and *** feel that he has been fairly and adequately compensated."

         ¶ 5 On June 11, 2013, Lawrence executed a quitclaim deed, drafted by Filler, conveying his one-half interest in the Home Farm to his grandson, James Schulz Jr. (Carolyn's son). At about the same time, Lawrence attempted to sell Ruth's one-half interest in the Home Farm, conveyed under Ruth's trust, to James. The record contains two letters related to this attempted conveyance. In a June 17, 2013, letter from Filler to Larry, Filler stated that he had multiple conversations with Lawrence regarding the sale of the Home Farm to James, that there was a bona fide appraisal of Ruth's one-half interest, and that Lawrence was requesting that Larry either consent to the sale or resign as cotrustee of Ruth's trust. In a June 27, 2013, letter from Filler to Larry's attorney, Filler relied on language in Ruth's trust that gave the trustees the power to sell any real property contained in the trust. Filler stated in the letter that, under that provision, he "believe[d] the Trustees do, in fact, have power to sell the property as proposed." Filler also stated that, since the other one-half interest (Lawrence's interest) was not going to be conveyed to Steven, the sale of Ruth's share to James was "a logical step to avoid future conflict." However, Larry did not agree, and the sale was never consummated.

         ¶ 6 In a last will and testament dated August 22, 2013, drafted by Filler, Lawrence revoked any prior wills and codicils. Lawrence then bequeathed all his farming equipment and machinery to James. All the remaining personal property was bequeathed to Julie and Carolyn. In his trust, also dated August 22, 2013, Lawrence, after making other specific bequests, left the remainder of his trust estate to Julie and Carolyn, and "intentionally omitted any distribution hereunder to my children, Marjorie ***, Larry ***, and Steven, as they have chosen lifestyles apart from mine." Lawrence died on October 2, 2014.

         ¶ 7 On May 22, 2015, Larry, Marjorie, and Steven filed a complaint against Carolyn, Julie, and James, alleging claims based on undue influence, tortious interference with expectancy, aiding and abetting tortious interference with expectancy, conspiracy, breach of fiduciary duty, rescission, and constructive fraud. The complaint also alleged claims for aiding and abetting tortious interference with inheritance expectancy and legal malpractice against Filler. Following motions and argument, the complaint, as well as first and second amended complaints, were dismissed.

         ¶ 8 About the same time that Steven filed his May 2015 complaint, he filed a petition in a consolidated probate action, challenging the validity of the 2013 will and trust. On February 28, 2017, Steven entered into a settlement agreement with Carolyn, Julie, and James and dismissed with prejudice his petition in the probate action and his claims in the present action against Carolyn, Julie, and James. However, the agreement specifically reserved Steven's claims against Filler and David O'Brien, Lawrence's accountant and financial adviser.

         ¶ 9 On February 10, 2017, Steven filed a third amended complaint, separate from Larry and Marjorie, the dismissal of which is the subject of this appeal. Steven's third amended complaint stated claims against Filler and O'Brien. This appeal concerns count I, a claim against Filler for aiding and abetting Carolyn's tortious interference with inheritance expectancy. Specifically, Steven alleged that Carolyn tortiously interfered with his inheritance expectancy by exerting undue influence over Lawrence, causing Lawrence to (1) convey his one-half interest in the Home Farm to James, (2) execute the 2013 will that disinherited Steven, and (3) attempt to sell Ruth's interest in the Home Farm to James. Steven alleged that Filler aided and abetted Carolyn's tortious interference with his inheritance by (1) drafting the 2013 ...

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